TXQW and Minister for Immigration and Border Protection (Citizenship)

TXQW and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1765 (9 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/7447
Re:TXQW
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:9 July 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[SGN]....................................
Member R Maguire
Catchwords
CITIZENSHIP – revocation of Australian citizenship under s 34(2) of the Act – whether the Minister had statutory power to grant the applicant citizenship – whether the applicant was of good character – the applicant pled guilty to one count of indecent treatment of a child under 16 with circumstances of aggravation and one count of indecent treatment of a child under 16 – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
REASONS FOR DECISION
Member R Maguire
9 July 2019
INTRODUCTION

This is an application by TXQW for the review of a decision by the Minister to revoke his Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (“the Act”). The nub of the decision to revoke his citizenship rests in a finding by the Minister that it was contrary to the public interest for the applicant to continue to be an Australian citizen in consequence of his convictions for serious criminal offences involving indecent assaults of two girls then aged 10 and 12 years between 1990 and 1991.
At the outset, the Tribunal considered it appropriate to issue a confidentiality order in this application to prohibit the publication or other disclosure of any information tending to reveal the identity of the applicant and his victims.
CLAIM HISTORY
The applicant was born in the Cook Islands. He became a New Zealand citizen at birth, and continues to be a New Zealand citizen.[1]
[1] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [2].
The applicant emigrated to Australia in 1990 with his ex-partner and their daughter.[2] The applicant and his ex-partner had three more children between 1993 and 1996.[3]
[2] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [3].
[3] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [6].
On 26 October 2016, the Department of Immigration and Border Protection wrote to the applicant advising him of the possible revocation of his citizenship and inviting him to provide information and comment.[4]
[4] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [15].
On 23 December 2016, the applicant responded to the Department via his solicitors, delivering submissions, character references, and a psychologist’s report.[5]
[5] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [16].
On 2 November 2017, the Minister for Immigration and Border Protection personally decided to revoke the applicant’s citizenship under s 34(2) of the Act.[6]
[6] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [17].
On 19 December 2017, the applicant made this application to the Tribunal under s 52(1)(f) of the Act.
On 22 June 2018, the application was heard by a Senior Member who has since become indisposed because of illness and unable to deliver a decision. The application was reconstituted to Member R Maguire of the Tribunal. In the light of the time which had passed since the hearing date, the parties were given the opportunity to provide further submissions if they so desired.
Further evidence and submissions were made on behalf of both parties, and the Tribunal has proceeded to consider and determine the application on all of the evidence and submissions before this Tribunal.
LEGISLATIVE FRAMEWORK
The Minister’s decision in this case was made under s 34(2)(b)(ii) of the Act. Section 34 of the Act relevantly provides:
…
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become and Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to be an Australian citizen.
…
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death, or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
The term “serious prison sentence” means a sentence of imprisonment for a period of at least 12 months.[7]
[7] Australian Citizenship Act 2007 s 3.
CONSIDERATION
The applicant has conceded that he committed a serious offence for the purposes of s 34(5) of the Act,[8] and he also conceded that he did not dispute the facts that led to his term of imprisonment.[9] The date and circumstances of the applicant’s arrest for the offences in question was not the subject of written or oral submissions on behalf of the applicant, and neither was it the subject of evidence in chief from the applicant. It was however the subject of cross-examination.
[8] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions dated 16 April 2018.
[9] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions dated 16 April 2018, at [18].
During cross-examination by the solicitor for the respondent, the applicant conceded that he had lived in Australia from 1990 until 2003, and he could have applied for citizenship during that time.[10] The following exchange occurred:
[10] Transcript, p. 29 at line 12.
…
Then, in 2003, you received phone calls from your victims, didn’t you? ---Yes.
…
Did you put your application for citizenship in on 5 May 2003? ---Yes.
Later that same month, later in May, you had already been charged with the offences, hadn’t you? --- That’s right.
So I’m putting it to you that the phone calls occurred before 5 May.Is that right? ---Yes, I can’t recall the dates but if that’s you record it, yes.
…
When you were charged with the offences, were you arrested? --- Yes.
Were you put in jail? ---Yes.
Then you were released on bail? --- Yes.
Do you remember when that was? --- I know it was 2003.
2003, but you don’t remember which month? --- No.
It was prior to 30 May because on 30 May you amended your application for citizenship, didn’t you? --- Yes.
You wrote – you changed your answer to the question:
Are you presently under a prohibition order, good behaviour bond, on parole, released on licence or subject to periodic detention?
From “no” to “yes” didn’t you? --- Yes.
That was because you were on bail at the time? --- That’s right, yes.
Yes. You didn’t change your answer to the question:
Are you aware of any proceedings pending against you for an offence, including proceedings by way of appeal or review?
But you wrote a notation which said:
“It being looked at in court for assault, over 10 years, 1991, minor.
Didn’t you? --- Yes
And you didn’t mention that it was sexual assault, did you? --- Well, I didn’t really - I thought, at the time that it wasn’t, like, that I did all my application form by myself. It was me and my wife. So I guess at that time I didn’t really understand the meaning of what all these questions are. And I guess I was going on what my knowledge at the time, yes.
But at the time you knew that you had committed these offences, didn’t you? --- It’s not that I knew, because we wanted to be Australia home. That’s what we – that’s why we went ahead and – and we weren’t thinking of application for our citizen before the crime or after the crime. It’s because we wanted to call Australia our home to. That’s why we applied for the citizenship.
The question I’m asking you is you knew that the offences you committed were sexual assaults, didn’t you? --- Yes, that’s right, yes.
But you wrote down “For assault, minor”? --- I can’t remember what I wrote that.
The applicant identified his handwriting on his Application for grant of Australian Citizenship in Exhibit 1 at page 60, and confirmed that he wrote:
It been look at in court. For asult (sic).
Over 10 yrs. 1991.
minor.
The cross-examination continued:[11]
[11] Transcript, p. 31 at line 16.
The impression you were trying to create from that was that you were currently under an order as a result of a minor assault. Isn’t that right? --- I guess, yes.
When, in fact, you were on bail for two very serious sexual assaults you had committed against children? --- Yes.
…
And I put it to you that at no point before you were granted citizenship did you ever tell what was then the Department of Immigration and Multicultural and Indigenous Affairs, about the charges against you, did you? --- No.
You never told them that you had committed these offences, did you? --- No.
In 2003, when you received the phone calls from these victims, you denied that the offending had taken place, didn’t you? --- Yes I did.
And you said that oral sex was one of the victim’s ideas. It was your victim’s idea to have oral sex, not yours? --- Yes.
And you told your other victim that you did it, and by “it” I mean the sexual assault, that you did it as a joke, didn’t you? --- Yes.
SENIOR MEMBER: Are you saying that you said that to the victim when she phoned you? Is that right? --- Yes.
…
And, then, for many years following your sentence of imprisonment for those charges, you denied to everyone in your life that you had committed the offences, didn’t you? --- Yes.
In fact, the first time that you ever admitted to anyone that you had committed these offences was after you received the letter from the Minister indicating that he was considering revoking your citizenship, wasn’t it? --- Yes.
I want to put it to you that the reason that you are now admitting that you did these offences is because you know it will give you the best chance of winning this case and being able to remain an Australian citizen. Is that right? --- No, it’s – it’s not just that.
…
It is. And remember you are under oath. I’d just like to ask that question again. Is the reason that you are now admitting that you committed these offences because you believe that it will give you the best chance of winning this case, and being able to continue with your life in Australia as a citizen? --- Yes, I guess, yes.
Some time prior to 5 May 2003, the applicant received phone calls from his victims.
On 5 May 2003, the applicant applied for Australian citizenship by conferral and acquired Australian citizenship on 23 July 2003,[12] thereby becoming a dual citizen of Australia and New Zealand.[13]
[12] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions dated 6 April 2018, at [13].
[13] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions dated 6 April 2018, at [19].
It is clear from the above extract of the cross-examination of the applicant, that based on the applicant’s evidence (which the Tribunal accepts in relation to this point) he was arrested sometime between 5 May 2003, and 30 May 2003. It is also clear from the passage quoted above, that the applicant’s reference to the charges in his application was calculated to mislead.
The application for citizenship by conferral was made under s 21(1) of the Act. One of the criteria which the applicant must satisfy for the grant of citizenship is found in s 21(2)(h) which is as follows:
(h) is of good character at the time of the Minister’s decision on the application.
The Act requires the Minister to approve or refuse an application made under s 21 of the Act,[14] but prevents the Minister from approving the application in certain circumstances.[15]
[14] Australian Citizenship Act 2007 s 24(1).
[15] Australian Citizenship Act 2007 s 24(1A).
One such circumstance in which the Minister is statutorily precluded from conferring citizenship is found in s 24(6) of the Act, which relevantly provides:
(6) The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
…
Had the Minister become aware of the pending charges against the applicant prior to 23 July 2003, it would have been open to the Minister to consider cancellation of the applicant’s approval as a citizen under s 25 of the Act on the grounds that the applicant was not of good character.
Notwithstanding this, it appears beyond question that in light of the applicant’s own evidence in this case, the Minister had no statutory power to grant the applicant citizenship on 23 July 2003 in consequence of s 24(6) of the Act.
On 28 November 2003, the applicant pleaded guilty and was convicted in the District Court of Queensland in Brisbane to:
(a)one count of indecent treatment of a child under 16 with circumstances of aggravation; and
(b)one count of indecent treatment of a child under 16.[16]
[16] Exhibit 1, T12, p. 195.
The children in question were both cousins of the applicant’s ex-partner.[17] They were girls aged 10 and 12 and the offences were alleged to have occurred between 6 October 1991 and 8 October 1992, and between 2 September 1990 and 4 September 1991.[18] The offences involved penetrating one of the children with the fingers, and ejaculating into the mouth of the other whilst she was performing oral sex upon him.[19]
[17] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [4].
[18] Exhibit 1, T6, p. 71.
[19] Exhibit 1, T8, p. 99.
In her sentencing remarks, Judge O’Sullivan described the applicant’s conduct as “truly despicable”[20] and said with reference to the victims, that the applicant had “ruined their lives”.[21] Her Honour also stated:
“… you did it to somebody else who was related to your wife and you and your wife did a cover-up.
…
These things are coming up and the community will no longer tolerate children being treated in this way.
…
I am told you said you were evil at the time. I agree with that and the community would agree with that. Indecent treatment of children is evil.” [22]
[20] Exhibit 1, T12, p. 195, line 49.
[21] Exhibit 1, T12, p. 196, line 10.
[22] Exhibit 1, T12, p. 196, lines 30 to 51.
Her Honour noted that the offences occurred “a long time ago” and that “sentences then were much lighter.”[23] The Court convicted and sentenced the applicant to three years imprisonment, suspended after serving 12 months imprisonment with an operational period of three years, in respect of each count, to be served concurrently.[24]
[23] Exhibit 1, T12, p. 195, lines 28 to 30.
[24] Exhibit 1, T12, p. 197.
The applicant was released from prison in late 2004, and his marriage to his ex-partner ended about that time. The applicant began his relationship with his current partner in 2014, and married her in May 2015.[25]
[25] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 15 May 2018, at [14].
At the hearing, the applicant’s counsel conceded that there are grounds under the Act that a citizenship revocation can proceed.[26] Moreover, during the course of cross-examination, the applicant admitted “I’ve done all these things”.[27] Notwithstanding the admissions made under oath by the applicant, and in his Statement of Facts and Contentions by his legal representatives, the applicant also admitted that he had denied to everyone in his life that he had committed the offences.[28]
[26] Transcript, p. 6, line 37.
[27] Transcript, p. 33, line 37
[28] Transcript, p. 32, lines 17 to 19.
One of the people to whom the applicant lied about not having committed the offences was to Dr Shay Addison, a psychologist of Forensic Psychology Centre, who interviewed the applicant and prepared a report concluding that the applicant was of low risk of reoffending.
The applicant informed Dr Addison in December 2016 that he was innocent of the offences, and that the victims had fabricated the events.[29] He also told her that he did not understand why the girls had made the claims,[30] and that the elder victim, now in her mid-30s, had contacted his former wife and disclosed that the statements made against him were false allegations, and his current wife confirmed this to the psychologist.[31] The Tribunal considers the suggestion that one of the victims retracted her allegations to be extremely implausible, particularly in the light of the fact that the applicant continues to pay $20,000.00 by way of criminal compensation to each of his victims; has made no application to set aside the convictions; and did not call the elder victim as a witness in these proceedings to repeat what she allegedly said.
[29] Exhibit 1, T8, p. 99.
[30] Exhibit 1, T8, p. 89.
[31] Exhibit 1, T8, p. 89.
In the cross-examination of Dr Addison, the following exchange occurred:[32]
“Right. And just go back to the applicant’s account of the offences, you said before that that was one of the factors which you took into account while making your assessments? --- Yes.
If the applicant had told you that he had committed the offences, how would your opinion have changed? --- My opinion would – I’m not sure because, I mean, I can’t answer that, because he hasn’t said that.”
[32] Transcript, p. 15, line 34.
Under cross-examination, Dr Addison was asked:[33]
“… If you had been aware that in 1991, he had a further conviction for behaving in an indecent manner, would that change the opinion you expressed in your report? --- That would be information that would be included in risk assessment, correct.”
[33] Transcript, p. 13, line 5.
The Tribunal does not consider that the evidence of Dr Addison can be given weight as she was not aware of the applicant having committed the offences at the time of providing her conclusions.
The Tribunal considers that it cannot give great weight to the applicant’s evidence or the evidence of his character witnesses. The Tribunal has come to this conclusion as the applicant lied to his character witnesses (which he admitted to during cross-examination) and lied to his ex-partner and current wife. The applicant also misled the Australian government by creating the impression that he was under order as a result of a minor assault charge.
On behalf of the applicant, a complaint has been made about the delay in the action to revoke his citizenship. However, it is very likely that the delay stems from his successful efforts to deceive government authorities as to the true and serious sexual nature of the charges which he was in fact facing whilst his application for citizenship was under consideration, and from his failure to disabuse authorities of that misapprehension.
It appears irrefutable that the applicant never lawfully acquired Australian citizenship by reason of s 24(6) of the Act as discussed above. If that were so, of course he could not be eligible for an ex-citizen visa. It may be that the Minister may wish to consider declaratory relief as to the validity of the applicant’s conferral of citizenship as it is not a question which this Tribunal has jurisdiction to determine.

The Tribunal has not had the benefit of considering any victim impact statements in this case, which would have been before the sentencing judge. The Tribunal accepts the sentencing judge’s remarks as reflecting Australian community standards, both then and now.
Whatever injustice the applicant may consider that he may suffer in consequence of this decision, more weight must be given to the entitlement of the Australian community to feel as safe and unthreatened as possible. Even if the level of threat from the applicant is “low”, (which is not the case) s 34(2) of the Act exists so that the Minister can protect the public from risk.
The Tribunal is satisfied that it is contrary to the public interest for the applicant to be an Australian citizen.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 42 (forty- two) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

....................[SGN].........................
Associate
Dated: 9 July 2019

Date of hearing:

22 June 2018

Representative for the Applicant:

Representative for the Respondent:

GTC Lawyers

Clayton Utz

[2019] AATA 1765

9 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction